VICTORIA ASAMOAH BARNIEH vs. ADWOA AWATOAH AND KWAKU TAKYI [2012]DLHC8260

Date	2012-05-03
Suit No.	SUIT NO. C11/28/11
Citation No.	[2012]DLHC8260

HIS LORDSHIP MR. JACOB B. BOON

F. K. BOUR FOR THE PLAINTIFF

KWASI BADU FOR THE DEFENDANT

[2012]DLHC8260
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													<main id="main" class="content" style="min-height: 60rem" >VICTORIA
ASAMOAH BARNIEH<o:p></o:p>vs.<o:p></o:p>ADWOA AWATOAH AND KWAKU TAKYI<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT NO. C11/28/11&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
3RD MAY, 2012<o:p></o:p>

</div>COUNSEL:<o:p></o:p>F.
K. BOUR FOR THE PLAINTIFF<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HIS LORDSHIP MR. JACOB B. BOON<o:p></o:p>

</div>The plaintiff/appellants, to be called the plaintiff,
filed this appeal against the judgment of Ejisu District Court delivered on 6th
October, 2010. The court was presided over by His Worship Eugene Obeng Ntim.
The plaintiff instituted the action in the court below and claimed (a)
declaration of title to and recovery of possession of a building plot No. 33
Block CX situate at Krapa (b) damages for trespass and (c) an order of
perpetual injunction against the defendant/respondents, hereafter to be
referred to simply as the defendants. In a statement of claim, she asserted
that the disputed land was allocated to her by the Lands Allocation Committee
of Krapa on the instructions of a former chief of Krapa called Nana Owusu
Akwatia-Perko II, deceased. According to the pleadings, the allocation was done
in 1998, and she paid a consideration of ¢150,000.00 and a bottle of schnapps
to the Allocation Committee. She also asserted that during the lifetime of the
chief who was her mother’s husband, he could not issue an allocation note to
her as evidence of the allocation. However, she contended that on or about 24th
October, 2003, the Gyasehene of Krapa gave her an allocation paper. She
asserted that despite the allocation of the plot to her, the first defendant
allocated the same piece of land to the second defendant and he started to
develop it, and that has necessitated the instant writ. The defendant did not
file any affidavit in opposition neither was a statement of defence filed
though the parties were ordered on 7th June, 2004 to file pleadings.
Nevertheless the trial went on without the pleadings, particularly a statement
of defence as the plaintiff filed a statement of claim before the order to file
pleadings was made. At the end of the trial, the case of plaintiff was dismissed
because the trial court was of the opinion that she could not prove her case “beyond reasonable doubt”. The court was
wrong when it put the standard of proof in a civil matter to one beyond a
reasonable doubt. Sections 11(4) and 12 of the Evidence Act 1975, (NRCD 323)
state the standard of proof in all civil cases as one on a “balance of
probabilities”. And this position was given flesh by the Supreme Court in Adwubeng v Domfeh (1996-1997) SCGLR 660
holding (3) at 662 as follows:<o:p></o:p><o:p>&nbsp;</o:p>“By
Ss 11(4) and 12 of the Evidence Decree 1975 (NRCD 323) the standard of proof in
all civil cases is proof by preponderance of probabilities, no exceptions were
made. Cases which held that proof of title to land required proof beyond
reasonable doubt no longer represent the present state of the law.”<o:p></o:p><o:p>&nbsp;</o:p>Be that as it may, the plaintiff is dissatisfied with the
decision of the trial court and has filed this appeal on the following grounds:
(a) the usual omnibus clause that the judgment is against the weight of evidence
(b) that the trial magistrate erred in failing to recognize that a valid gift
of the plot was made to her by the deceased chief of Krapa (c) the trial
magistrate erred in failing to acknowledge that 1st defendant had no
capacity to allocate plot 33CX to the 2nd defendant and (d) the
trial magistrate erroneously applied the principle established by Oshodemirin v Tetteh (1973) IGLR1.<o:p></o:p><o:p>&nbsp;</o:p>As the grounds of appeal contain the omnibus one, it
affords this court an opportunity to critically examine the entire record of
the district court so as to ensure that the conclusions of the district court
are supported by the evidence on record. In Tuakwa
v Bosom (2001-2112) SCGLR 61 at page 62 the court said as regards the
omnibus ground of appeal in the following terms:<o:p></o:p><o:p>&nbsp;</o:p>“Furthermore,
an appeal is by way of re-hearing particularly where the appellant alleges in
his notice of appeal that, the decision of the trial court is against the
weight of evidence. In such a case, although it is not the function of the
appellate court to evaluate the veracity or otherwise of any witness, it is
incumbent upon an appellate court, in a civil case to analyse the entire record
of appeal, take into account the testimonies and all the documentary evidence
adduced at the trial before it arrives at its decision, so as to satisfy itself
that, on a preponderance of probabilities, the conclusions of the trial court
are reasonably and amply supported by the evidence…”<o:p></o:p><o:p>&nbsp;</o:p>In such a situation the appellant has a duty to clearly
and amply demonstrate to the appellate court the lapses in the judgment being
appealed against: see Djin v Musah Baako
(2007-2008) SCGLR 686, holding (1) at 687 that:<o:p></o:p><o:p>&nbsp;</o:p>